Summary
granting plaintiff's application to have her deposition taken by telephone, given the significant time, expense, and inconvenience of requiring her to travel from Brazil to New York
Summary of this case from UniSuper Ltd. v. News Corporation.Opinion
01 Civ. 7441 (JSR) (THK).
January 14, 2002
MEMORANDUM OPINION AND ORDER
This breach of contract and trademark infringement action was referred to me by the Honorable Jed S. Rakoff, United States District Judge, for general pretrial supervision. Presently before the Court is an application for a protective order by Plaintiff, Marcia Normande, who is proceeding pro se, to have her deposition taken by telephone. Ms. Normande presently resides in Brazil. She contends that the cost of flying to New York from Brazil would exceed $3,000, and would impose further hardship on her because she would be required to travel with her infant son. Moreover, in view of the distance, travel each way for the deposition would consume an entire day. Ms. Normande offers to appear for a second deposition in person if the telephone deposition proves to be unsatisfactory. Defendants oppose the application, arguing that they would be hampered in their ability to present documents to Plaintiff at her deposition, and would be precluded from observing her demeanor.
DISCUSSION
Defendants rely upon an often-cited decision emanating out of this Court, Clem v. Allied Lines Int'l Corp., 102 F.R.D. 938 (S.D.N.Y. 1984), which held that a plaintiff who seeks to have his deposition taken by telephone, while abroad, must demonstrate that holding his deposition in the forum of the action would impose an extreme hardship on him. Id. at 940. In Clem, the court concluded that the plaintiff had not made a sufficient showing that the financial burden of traveling to New York would be prohibitive. Id. Moreover, the plaintiff had plans to be in New York, so that any hardship arising out of travel to New York would be minimal. Id. The Clem case and those that follow its reasoning rest on the presumption that a plaintiff who chooses to bring suit in a particular forum should be prepared to be deposed in that forum. See United States v. Rock Springs Vista Dev., 185 F.R.D. 603, 604 (D. Nev. 1999) (requiring plaintiff to appear in forum for deposition in absence of showing of good cause for varying from the normal rule); Michael C. Silberberg, Civil Practice in the Southern District of New York § 17.11 (2d ed. 2000) ("[T]he deposition of a plaintiff usually may be taken in the Southern District of New York notwithstanding the plaintiff's residence outside the district.") In addition, as a general matter, it is less cumbersome and more illuminating to conduct a face-to-face deposition. See Daly v. Delta Airlines, No. 90 Civ. 5700 (MEL) (MHD), 1991 WL 33392, at *1 (S.D.N.Y. Mar. 7, 1991).
This Court does not take issue with these general propositions. Nevertheless, as with many other issues in pretrial discovery, there is no absolute rule as to the location of the deposition of a nonresident plaintiff. See 8A Wright, Miller Marcus, Federal Practice and Procedure § 2112 (2d ed. 1994) ("Since plaintiff has selected the forum, he or she will not be heard to complain about having to appear there for a deposition. But this is at best a general rule, and is not adhered to if plaintiff can show good cause for not being required to come to the district where the action is pending."). Rather, courts must strive to achieve a balance between claims of prejudice and those of hardship, always guided by the proposition that the Federal Rules of Civil Procedure "shall be administered to secure the just, speedy and inexpensive determination of every action." Fed.R.Civ.P. 1.
Thus, courts have permitted nonresident deponents to be deposed where they live, when they have been able to show financial or other hardship.See, e.g., Abdullah v. Sheridan Square Press, Inc., 154 F.R.D. 591, 592-94 (S.D.N.Y. 1994) (where plaintiff lived in London, had no choice of forum, had meager financial resources, and would face prejudice with respect to an asylum application in the United Kingdom if he left the country, defendant was required to travel to London for his deposition). Moreover, the Federal Rules of Civil Procedure and a steadily developing body of caselaw recognize that telephone depositions are a presumptively valid means of discovery. See Fed.R.Civ.P. 30(b)(7) ("The parties may stipulate in writing or the court may upon motion order that a deposition be taken by telephone."); Local Civ. R. 30.3 of the Eastern District of New York ("The motion of a party to take the deposition of an adverse party by telephone will presumptively be granted."); Jahr v. IU Int'l Corp., 109 F.R.D. 429, 431 (M.D. Cal. 1986) ("[L]eave to take telephonic depositions should be liberally granted in appropriate cases. . . . Thus, upon giving a legitimate reason for taking a deposition telephonically, the movant need not further show an extraordinary need for the deposition."); Anguile v. Gerhart, Civ. A. No. 93-934, 1993 WL 414665, at **2-3 (D.N.J. Oct. 7, 1993) (court permits plaintiff residing abroad to be deposed by telephone, observing that the Clem decision, requiring a showing of extraordinary hardship, "is an anomaly in the line of modern cases dealing with Fed.R.Civ.P. 30(b)(7)"); Rehau, Inc. v. Colortech, Inc., 145 F.R.D. 444, 446 (W.D. Mich. 1993) (adopting Jahr rather than Clem approach and permitting officers under control of corporate plaintiff to be deposed abroad by telephone).
Here, Defendants oppose a telephone deposition, based on the conclusory argument that it would hamper their presenting documents to the deponent, and would preclude them from observing Plaintiff's demeanor. (Letter of Fred D. Weinstein, Esq., Dec. 23, 2001.) There is no reason to believe that this case involves a large volume of documents, and premarking the exhibits in advance of the deposition would reduce any difficulty in identifying documents for the deponent. Moreover, "lack of face-to-face questioning is the very essence of a telephone deposition. Acceptance of defendant's argument [about the need to see the deponent's demeanor] would be tantamount to repealing [Fed.R.Civ.P. 30(b)(7)]."Jahr, 109 F.R.D. at 432. Indeed, although depositions are frequently read to jurors when witnesses are unavailable, this is not a case where the finder of fact will be deprived of the benefit of observing the deponent's demeanor. Plaintiff will be required to be at the trial of this action.
In sum, because this is not a complex case, Plaintiff is proceeding pro se, and the time, expense, and inconvenience of coming to New York from Brazil with an infant child would be significant, Plaintiff's application to have her deposition taken by telephone is granted. On this record it is clear that the hardship resulting from a deposition of Plaintiff in New York outweighs any prejudice to Defendants. Plaintiff will be required to bear the expense of the telephone deposition and must also make arrangements to be sworn by an individual who is authorized to administer oaths in Brazil. The Court reserves the right to require Plaintiff to appear in New York for a follow-up deposition upon a showing by Defendants that they were unable to conduct a meaningful deposition by telephone.
So ordered.